ILLINOIS POLLUTION CONTROL
BOARD
May 5,
1983
IN THE MATTER OF
)
PROPOSED SITE SPECIFIC WATER POLLUTION
)
R81—19
RULES AND REGULATIONS APPLICABLE TO
)
CITIZENS UTILITIES COMPANY OF ILLINOIS~
)
DISCHARGE TO LILY CACHE CREEK
FINAL ORDER
OF DISMISSAL
OPINION AND ORDER OF THE BOARD
(by J.D. Dumelle):
On June
12, 1981 Citizens Utilities Company (Citizens)
filed a petition for site-specific regulatory relief which was
accepted by the Board and authorized
for hearing and publication
on June 25, 1981.
Five merit hearings were held on October 26,
1981; November 12 and 13,
1981; and January 14 and 15,
1982.
On November 23,
1982 the Village of Bolinghrook entered its
appearance.
On July 14,
1982 the Department of Energy and Natural
Resources transmitted to the Board copies of its economic study
entitled The Economic Impact of Proposed Regulation R81—19 for
Site—Specific Water Pollution Rules Applicable
to Citizens
Utilities Company Discharge to Lily Cache Creek
(Ex.
23).
An economic impact hearing was held to consider that study on
October 20,
1982.
Final comments were received by the Board on
December
3,
1982.
Citizens provides sanitary sewer service
to approximately
21,000 customers in the metropolitan Chicago area under certificates
of public convenience and necessity granted by the Illinois
Commerce
Commission.
One of its certificated service areas comprises
a substantial portion of the Village of Bolingbrook in Will
County,
which is referred to as Citizens West Suburban service
area.
Citizens provides both water and sanitary sewer service
in that area to approximately 7,300 connections
(6,400 single--
family residences,
760 apartment units, and 170 commercial units).
To provide public utility sanitary sewer service in the
West Suburban service area, Citizens owns, operates and maintains
a complete sanitary sewer collection system and two wastewater
treatment plants.
This proceeding concerns Citizens West
Suburban wastewater treatment plant No.
1
(WSB 1) which is
located at the intersection of Glengary Drive and Briarcliff
Road in Bolingbrook.
WSB
1 is an activated sludge plant,
operated in
the
contact stabilization mode with a design
dry
weather flow of 1.28 mgd.
Discharge is to Lily Cache Creek.
Citizens other wastewater treatment plant
(WSB 2) is located in
the western portion of Bolingbrook.
The portion of Bolingbrook
not within Citizens service area is provided sanitary sewer
service by a collection system a~dwastewater treatment plant
owned and operated by Bollngbrook.
52-189
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WSB 1 was issued NPDES permit No.
IL 0032727, dated
November
5,
1975, which originally required final effluent
limitations for biochemical oxygen demand
(BOD) and total
suspended solids
(TSS) of 10 and 12 mg/i, respectively,
in
addition to
a condition that effluent ammonia nitrogen not
cause a violation of old Rule 203, water quality standards
(General Standards), in the receiving stream.
Old Rule 203(f) of
the Board’s Water Pollution Rules and Regulations, Chapter 3,
provides for a maximum ammonia nitrogen (NH~—N)concentration
of
1.5 mg/i.
Old Rule 402 of Chapter
3 provides, in part, that
no effluent shall, alone or in combination with other sources,
cause a violation of any applicable water quality standard,
which includes old Rule 203(f).
Old Rule 402.1(b), in effect,
permits discharge of an effluent containing a maximum concentration
of NH~—Nof 4.0 mg/i during the months of November through March,
if th~discharge alone or in combination with other discharges,
causes or contributes to a violation of Rule 203(f) pertaining
to NH3-N.
On March 5,
1981 the Board adopted an order granting
Citizens a variance until July 2,
1985 from old Rules
404(c)
402.1(b) and 402 as they apply to the NH.~-Nstandard of Rule 203(f).
The variance established the following effluent limitations
until July 2,
1985:
Flow-Weighted
Monthly Average
Daily Composite
BOD
20 mg/i
40 mg/i
TSS
25 mg/i
50 mg/i
NH3—N
15 mg/i
30
rng/l
As the variance order recites, Citizens expressed its intention
to pursue site—specific regulatory relief during the variance
period for WSB
1 to allow permanent operation under the
20/25/15 conditions allowed during the variance period.
Accordingly, this proceeding was commenced.
In addition to the requested 20/25/15 standards, Citizens
also proposes that dissolved oxygen
(DO) and NH3-N water quality
standards be made inapplicable to its discharge when the flow in
the Creek is
less than
2 cubic feet/sec.
When the flow is
greater than that amount a DO limitation of
4 mg/i
is proposed.
Citizens contends that no degradation to the Creek can occur
through adoption of the proposed regulations in that it will
continue to operate as it has and will produce the same quality
effluent.
Therefore,
it argues, no expenditures for attaining
compliance are justifiable and the relief should be granted.
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Such an argument is patently misdirected.
If that reasoning
were adopted anyone receiving a variance would be entitled to
site—specific relief.
That clearly
is not the intent of the
Environmental Protection Act
(Act).
Variances are to be granted
upon a showing of arbitrary or unreasonable hardship and are to
allow a period of time, not to exceed five years,
for the variance
petitioner to achieve compliance
Sections
35(a)
and 36(b);
they
do not simply excuse compliance.
Rulemaking proceedings,
on the
other hand, establish a regulatory framework designed to accomplish
the state’s environmental goals:
“to restore, protect and enhance
the quality of the environment”
Section
2(h).
Similarly,
Section 11 of the Act states that the purpose of water pollution
regulation
is “to restore, maintain and enhance the purity of the
waters of this State,”
and to avoid “impairment of
...
legitimate
beneficial uses of water.”
Further, the national goal of the
Clean Water Act is “that the discharge of pollutants into the
navigable waters be eliminated”
(Section 101(a)(1).
The intent
is
not,
as seems inherent in Citizens argument,
to maintain the
status quo.
STREAM USES AND ENVIRONMENTAL IMPACT
Lily Cache Creek
(Creek)
is approximately 16 miles
long
and WSB
1 is located approximately
15 miles upstream from its
confluence with the DuPage River.
The Creek has been classified
as an intermittent stream;
i.e., historical
7—day 10—year low
flow is zero.
Two substantial
tributaries enter the Creek
within three miles downstream of WSB
1 and a number of drainage
tiles,
culverts and man—made ditches discharge to it throughout
its length.
The headwaters of a basin, even
if an intermittent stream,
as here, can be an important part of the ecosystem.
For example,
they provide spawning areas and nutrient loading
(R.
667).
Many
intermittent streams
in northern Illinois “support a variety
of aquatic organisms,”
and “just because there is an absence of
visible water does not necessarily mean that the stream has no
aquatic organisms”
(R.
491—492).
In
fact,
a diverse aquatic
community could be expected
(R.
493).
Furthermore, Lily Cache Creek is no longer an intermittent
creek due to the WSB
1 discharge
(R.
491).
Citizens appears to
argue environmental impact on the basis of what the Creek
would be absent the discharge.
However,
most,
if not all,
of the
waters of the State have been affected by man, both in terms of
flow and pollutant loadings.
The use and enjoyment of those
waters is based on their present make-up, not on what they were
formerly.
The goal of water pollution programs
is not to return
every body of water to its “natural”
state, but rather to maximize
the beneficial uses of those waters
in their existing states.
Several bodies of water would not exist at all but for man’s
actions giving rise to them,
but the Board has never held that
such waters may be freely polluted.
Rather,
the Board has held
that where such waters are accessible to the public, they should be
protected.
52-171
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Citizens alleges that the Creek
is “extremely degraded”
and its value as a natural resource
is “extremely limited”
by land use changes and commitment to agricultural and suburban
development including channelization,
erosion,
siltation,
littering,
impoundment, and contaminated agricultural and urban run—off.
These conclusions were reached by the Envirosphere Company which
was retained by Citizens to study the ecological significance
of the proposed regulation upon the Creek
(Ex.3).
That study
also concluded that land use and intermittent flows are the
limiting factors for aquatic
life diversity and productivity
rather than WSB l’s discharges.
Further, Citizens contends that sensitive aquatic life
species which form the basis
for the general use standards cannot
be maintained
in the segment of the Creek impacted by WSB
1 due
to habitat alteration.
Finally, Citizens concludes that the Creek
is not actually used for swimming, boating, recreation,
sport
fishing, or as a spawning ground for sport
fish.
The Agency, however, disagrees with Citizens’ assessment of
the Creek.
It contends that channelization has not had as sub-
stantial
an impact as Citizens states and that there is an adequate
habitat to suppport a diverse aquatic community.
The Agency also
argues that there is a lack of evidence of heavy siltation or of
any substantial
impact by urban or agricultural run—off.
It,
therefore, disagrees with Citizens’ conclusion that allowing WSB
1
discharges at the requested levels would not have a substantial
impact on the Creek.
Finally,
it disagrees as to the recreational
value of the Creek.
That there is contradictory evidence
in the record is not
in itself troublesome, although the extent of disagreement in
this record surpasses most.
The degree of channelization,
for
example,
is stated to be 15—20
(R.
384),
22
(R.
585),
44
(R.
525),
57
(R. 704),
and 20—60
(R.
839).
Further, Citizens presented
evidence that channelization causes a creek to become “visually
and functionally, a drainage ditch”
(Ex.
3,
p.3), while Wallace
Matsunga, an Agency aquatic biologist, stated that “in spite
of channelization that has occurred, riffle areas,
pools,
stream
bank vegetation and canopy cover were observed in various reaches
of the channelized portion of the creek” and absent “water quality
limitations, these areas should still be able to support a diverse
aquatic community”
(R.
339-340).
What is particularly troublesome is the basis upon which
these contradictory conclusions were reached,
Dr. Glenn Piehier
of Envirosphere, who was retained by Citizens to study the WSB
1
impact upon the Creek,
examined the Creek by stopping at each
road that intersects
it
(R.
91).
At these intersections he would
walk some distance up and downstream and
in this manner he
observed about a mile and a quarter of the Creek’s
sixteen mile
length
(R.
273-274).
He did not measure the quantity of nonpoint
source run—off,
and yet he concluded that it caused “stress”
based on his “experience,” surrounding land uses,
and drainage
patterns
(R.
277—278).
52-172
—5—
While
some sampling of flows other than WSB
1 discharges was done,
it is impossible to compare the impact of those
flows to the WSB
1
flows due to the lack of quantity measurements.
Further,
the
samples were taken only during periods of heavy rains during
which BOD and TSS loadings would be expected to peak,
and, therefore,
are not representative of the overall contribution to pollutional
loadings by the non—WSB
1 sources
(R.
239, 277—278).
Ammonia nitrogen was neither measured nor modeled
(R.
330
and Ex.
2,
App.
A), and yet the study concludes that surrounding
“farms may,
on an annual basis, be adding a considerable amount
of ammonia to the creek as a result of fertilization and
breakdown of organic nitrogen” based on a literature review
(Ex.
3, p.6).
As the Agency pointed out,
Dr. Piehler admitted
that his source of knowledge of Illinois farm practices came from
employees of Citizen’s Utilities
(R. 401),
and that the reference
cited by Dr.
Piehler
(Ellis)
states that ammonia rapidly converts
to nitrate in the soil and does not leave the soil
in the form
of ammonia to any significant degree
(R.
810—811),
Finally
Mr. William Bertrand of the Department of Conservation testified
that many of the farms in the areas were using some conservation
practices that would alleviate many run-off problems
(R.
656).
Species of indigenous fish were also determined on the basis
of a review of literature and a single fish sample using a minnow
trap, which is a rather inadequate method
(R. 607,641).
Enviro—
sphere concluded that sensitive species “have largely been eliminated
from Lily Cache Creek and would not be present during low flow
conditions”
(Ex.
3,
p.
19).
Mr. William Bertrand, however,
testified that a 1980 fish collection 5.3 miles below the WSB 1
discharge “included carp, bigmouth shiner,
sand shiner,
bluntnose
minnow,
fathead minnow,
creek chub,
green sunfish and bluegill”
which he believed “disproves the contentions
in Envirospher&s
report “that sport fish are restricted to the lower seven miles
of the Creek”
(R. 641).
Further, there was considerable testimony that adequate
habitat exists to support a diverse aquatic community, despite
Citizens’ contention that the habitat is limiting.
Evidence was
presented that riffles, pools,
stream bank vegetation and canopy
cover exist at several points along the Creek
(R.
440—441,
446—447,
452,
457).
Unfortunately, Mr.
Matsunaga,
who testified regarding
the habitat,
did not make a particularly exhaustive inspection of
the Creek.
He “looked at the reach,
observable reach,
of the stream
at all of the various road crossings”
(R.
480).
He did not walk
the Creek and took no samples
(R.
478).
Citizens’ analysis of the impact of the WSB 1 discharge
upon the Creek is also based on inadequate support.
Dr. Piehler
admitted that he did not develop a full scale balanced model
of
the Creek because “the ends would not have justified the means,”
although he did not know how much such modeling would have cost
(R.
265).
Instead, Citizens used the basic Streeter—Phelps
52-173
—6—
model without adjustments
(R. 407), which he admitted was not as
accurate as other models could be
(R.
404—410).
He stated that
it is a steady state model
which did not consider benthic, agal or
sediment oxygen demand
(R. 407-408).
He felt the model
“would
provide additional
insight into how significantly BOD and DO
would change under different flow conditions and different permit
conditions,
and it was geared to just getting some estimates”
(R. 408—409).
It was done as an “exercise” and “assumed” non—
point source discharges.
Even using that model, which could understate the
dissolved oxygen depression,
a substantial impact on the Creek
is apparent.
Figure 10 of Exhibit
3 shows
DO levels depressed to
near
1 mg/i under conditions of 20 mg/i BOD and 15 mg/i NH3-N with a
Creek flow below
2 cubic
feet per second.
Based on these contradictory and ill-supported conclusions,
it is impossible
for the Board to determine what the present
or potential uses of the Creek are.
Most of the testimony
is conclusory in nature, based on little sampling, observations
of a small percentage of the Creek and largely unsupported
assumptions.
Better modeling, including sampling to verify the
model, could and should have been done.
The Board cannot determine
what the present BOD, DO and NH.~-Nlevels are or what they would
be if Citizens were to come int~compliance with present regulations.
The testimony presented by the Agency at the very least raises
substantial questions concerning the accuracy of Citizens’
assertions regarding what aquatic life currently exists in the
Creek or what aquatic life could potentially live there,
Similarly,
the extent of channelization, how much its effect has been
mitigated with time and how much it may be mitigated in the future
is uncertain.
The degree of siltation
is based on inadequate
obse.xvations and
saKilpilny,
largely
unsupported by the photcgraphic
exhibits.
Sampling appears to be worst case concentration levels
of an unknown quantity of flow.
Such data
is insufficient to
support the conclusion that nonpoint source loadings are equivalent
to WSB
1 discharge loadings,
as Citizens contends, and even if it
is, that
is not sufficient to demonstrate that the WSB
1 discharge
is not a significant factor in limiting the aquatic life in the
Creek.
ECONOMIC REASONABLENESS
AND
TECHNICAL
FEASIBILITY
There is no question as to the technical feasibility of
achieving compliance with the general use standards:
wastewater
treatment plants throughout the state meet them.
Citizens performed
a study to determine the facility improvements which would be
required to meet those standards (Ex.
4).
According to that
study, the capital cost would be $3.63 million with annualized
costs of $1.34 million.
If apportioned among WSB
1 customers, the
average yearly cost would increase $411 or 454
(R.
146).
Jack
Grossman,
an officer of Citizens, testified that those funds are
available, but that it is not in the public interest to make the
improvements
(R.18—19).
52-174
—7—
There are several questions that arise concerning these
figures, however.
Local per capita costs
for construction at
WSB
2 were spread over both the WSB
1 and WSB
2 areas.
Yet,
the
figures presented here are spread only over the WSB
1 area, which
may not be
acceptable
to the Commerce Commission
(R.
158-160).
Obviously,
if the expenses were spread over both service areas,
the
per
capita cost would be less.
David Chardavoyne, an environ-
mental engineer for Citizens, testified “that if the same cost
were apportioned among the entire Bolingbrook service area... the
increase per customer per year would be $167”
(R.
170-171).
He
also mentioned a third possibility of “apportioning it among the
total number of customers receiving wastewater treatment,
from
Citizens”
(R.
172).
No apportioned cost is presented for the
third alternative, however.
The Agency also challenged whether the projected costs
are solely attributable to upgrading to meet Board standards,
since the plant is now over 20 years old and may soon be
in need
of repairs or upgrading even if the proposed regulations were
adopted
CR.
920—923).
If that were the case, concurrent upgrading
might well result in lower costs attributable to meeting the
general use standards.
However, no evidence was presented on
that point.
Dr. Robert Ducharme, author of the economic impact
study
(EcIS), made no independent analysis of the upgrading costs.
He
simply “went to the procedures that they
Citizens)
used...
step by step and checked the references... and their assumptions
against current information.” He found no reason to dispute the
figures
CR. 913—914).
He did not, however evaluate whether the
components themselves were needed
(R.
915).
He
also did not evaluate whether there might be less
expensive compliance techniques
CR.
917).
He did not consider
the costs of closing the WSD
1 plant
and
pumping
its
wastewatcr
to
WSB
2 for treatment, nor did he consider the feasibility of
pumping the effluent directly to the East Branch of the DuPage
River.
There is some present “capability of transferring a
certain amount of flow” to WSB
2 through several pipes although
the quantity that could be transferred
is not given
(R.
757).
The
distance that the effluent would have to be transported for
discharge to the East Branch of the DuPage River is two or three
miles,
but the costs involved in this are also not given
(R.
758).
Post
aeration was briefly discussed as a possible means of
compliance with the DO standard.
Chardavoyne stated that it “is
probably one of the...lesser expensive processes that could be
done”
CR.
760).
Matsunaga also testified that aeration could
improve the stream condition
CR.
489-490).
However, once again,
neither the cost nor the effectiveness was quantified.
The ECIS presents an analysis of the costs and benefits of
the proposed regulation.
It concluded that the only environmental
cost was lost fishing opportunities.
Based on “worst case”
assumptions
(little or no present fishing limited solely by water
quality problems caused by WSB
I
discharges), the study determines
this cost to be $52,000/year (EcIS, pp.
5—1 through
5—13).
52-175
—8—
This figure includes all
of the lost fishing opportunities on the
lower 12 miles of the Creek and 10
of those lost on 14.8 miles
of the DuPage River downstream of its confluence with the Creek
based upon the Creek’s 10
contribution to the flow
(EcIS,
pp.
5—I through 5-13).
Cost savings due to the elimination of upgrading costs
to meet the general use standards (assuming adoption of the
proposed regulation) are then analyzed.
However, some of the
assumptions used by Citizens in arriving at savings of $1.34
million are questioned (particularly allowances for the cost of
debt and equity capital, depreciation allowances and the percentage
assumed in estimating tax credits)
and according to Ducharme
could result in a reduction of cost savings to $0.85 million
(EcIS pp.
6-1 through 6—4).
Thus, the annual savings to Citizens
customers would be from $106 to $411/year depending on whose
figures are correct and what cost apportionment base is used
(WSB
1 or all Bolingbrook wastewater customers).
Benefits are then compared to costs and are estimated to exceed
costs by 16 to 26 times depending on which figures are used
(EcIS
p.
1-5).
However, there are difficulties associated with those
ratios.
The value of a stream cannot be measured solely in terms
of lost fishing opportunities.
Ducharme admitted,
for example, that
he was “not able to quantify the value of the stream as a fish
spawning stream as opposed to a fishing stream”
(R. 899).
He
also admitted that there are other values associated with a clean
stream in terms of natural resource protection,
but that he
did not know how “to get a handle on quantifying them”
CR. 900).
The possibility of odors “arising under certain conditions”
could impact streamside activities but “would be a totally impossible
fact to get a handle on”
CR.
902).
Ducharme also admitted that
people who live along the Creek could be adversely affected by
impairment of the aesthetics of the stream, although he felt
that cost to be insignificant
(R.
908—912).
In all, no costs
were attributed to ten of eleven stream uses suggested by Huff
which could potentially be impacted by water quality because they
were either unquantifiable,
inapplicable or insignificant (EcIS,
pp. 5—1 through 5—4).
These possible shortcomings of the study are pointed out not
as a criticism of this particular study, but rather to demonstrate
the proper context in thich the Board must consider it.
Environmental
and aesthetic impacts are not readily quantifiable.
Value can be
either monetary or simply a quality considered worthwhile.
When
attempting to evaluate the monetary value of a complex,
interrelated
system such as the ecosystem,
any economic valuation is difficult
to determine.
When aesthetics are overlaid, the task becomes nearly
impossible.
The utility of an economic impact study lies in quantifying
that which is quantifiable,
in pointing out the shortcomin~gsof
that analysis,
and in indicating unquantifiable impacts which should
aIsc~be copsiderecl
A~such,
it is oply one a~pectamong many
tnat must ~e considerea by the Board
in determining economic
reasonableness.
52-176
—9—
The Board must view site—specific regulatory proposals within
the context of overall environmental programs.
If the Board were
to determine that Citizens should be allowed its requested relief
on the basis that Lily Cache Creek has largely been “dedicated
as a drainage ditch”
as Citizens contends,
what basis would the
Board have for denying other dischargers
to similar tributaries
to the DuPage River?
What environmental
sense would it make for
the Northeastern Illinois Planning Commission to proceed with
plans under Section 208 of the Clean Water Act to limit non-point
source discharges if the point sources are allowed to freely
pollute?
Perhaps the best use of the Creek is as a drainage ditch.
Perhaps allowing that use will not have a significant effect
on other waterways in the State or upon the people who use
the Creek for other purposes.
However, this record simply does
not present enough information about the Creek for the Board
to determine that to be the case.
Many of the factors presented
as limiting the present uses of the Creek may improve in time.
Debris and litter can and should be removed.
The adverse effects
of channelization are mitigated with time as organisms repopulate,
exposed banks stabilize, and canopy regrows.
Silt deposition
may well lessen as “208” plans go into effect and farmers take
greater measures to eliminate erosion and soil loss through low
till or no till plowing techniques.
As fewer pollutants are allowed
in the air, the quality of urban run-off should improve.
It may
be possible to eliminate DO problems through instream aeration.
If these things occur,
water quality may well become the sole
limiting factor to aquatic life in the Creek.
If so, increased
costs to Citizens’ customers of what could be less than ten dollars
a month may not be at all unreasonable.
The DuPage River water quality has improved considerably over
recent years, but it is not nearly as good as
it once was.
Fishing has improved,
but it could be made better.
The Creek
accounts for eleven percent of the total
flow of the DuPage River
at its point of confluence.
It may make an even greater contribution
to fishlife than that if it were to become a useful spawning area.
But again,
from this record the Board simply cannot make that
determination.
There
is not enough information as to potential,
or even actual, use or impact for the Board to make a determination
as to whether it is economically reasonable to maintain the general
use water quality standards along the Creek.
BOARD ACTION
In a regulatory proceeding, the record must provide an
adequate basis for the Board
to determine whether the proposal
is justified.
If the record fails to do so,
the proceeding should
be dismissed.
The Board
finds this record to be too deficient
to make a substantive decision.
The actual and potential
stream
conditions,
the future impact assumptions, the modeling, the
alternative methods of compliance,
the cost projections and
52-177
—10—
apportionment base and the economic impact are all insufficiently
addressed.
This proceeding is, therefore, dismissed.
IT IS SO ORDERED.
Board Member Don Anderson dissented.
I, Christan
L. Moffett, Clerk of the Illinois Pollution
Control Board hereby certif,4es that the above Opinion and
Order was adopted on the
~‘
~-
day of
__________________
1983 by a vote of
~—~‘
.
(7
I
C
Christan
L, Moffet
(‘ lerk
Illinois Pollution COntrol Board
52-178
